Had A Bad Day

I'm trying a case where my client has a co-defendant. The co-defendant is represented by a lawyer not from my office (the lawyer is known as my co-counsel).

That lawyer has had criminal trials before (but very few), and has been a lawyer for much longer than me.

Here's the thing... she kind of sucks. And I don't think she realizes it.

And it's not like she's doing something terrible to help her client and sabotage my client. It's like she has no idea what she's doing and she's hurting both of our clients.

She's trying, it's not like she's sitting back and not doing anything (I could handle that, I could make up for that), it's like she's getting in the way and making all of the wrong arguments.

Here's an example... There was an aspect of the case, a small element, that I thought the prosecution wouldn't prove. Not because I didn't think they could prove it, but I thought there was a chance the prosecutor would just forget about it. And guess what... he did!

And that was it. Now we just had to sit there and be quiet until the case was over so that the prosecutor wouldn't figure it out.

And guess what my co-counsel did... She got up and asked the question.

Ooops.

Except she's done this kind of thing throughout the case.

And it's funny, because clients are kind of clueless sometimes about when things are going well, and when things aren't. Her client keeps saying to me, "Come with me to the judge and tell the judge my lawyer is incompetent." And I have to keep saying, "No, your lawyer is really trying," or "She has her own strategy." When what I really want to say is, "Yeah, and while you're at it, can you find some way to get us all a mistrial?"

Meanwhile, my client keeps telling me, "That other lawyer is really good. She asks them all of the tough questions. They weren't even going to bring up that one thing, they didn't even know what they were doing." Yes, exactly, that's the point! But I don't want to bad mouth her.

So... any suggestions? How can I tell her, "You know, why don't you just sit back and let me try the case... because YOU SUCK!" without, you know, ruining her confidence for the rest of the case?

In the meantime, pray for a time machine so we can go back in time and try harder for that severance I wasn't too worried about.

17 comments:

You gotta tell her.If it were only HER client who was getting the short stick I'd probably say leave it alone or maybe even give her polite suggestions if you have that close rapport, but here YOUR client is suffering from her blunders.

If talking to her destroys her confidence she might make a blunder egregious enough for her client to get fresh counsel.

That's not so bad.But not talking to her seems to be worse for your clinet.

Ok, you have to say something. Since the lawyer is older and more experienced (but not in your area), put it like this...

Listen, I know this Court and this Judge and this Prosecutor because I sit here every day. I know the "culture" of this place. I knew the prosecutor wasn't going to bring up X because he's made that mistake before. It was probably a bad idea to bring up X, because I think that tipped him off. We might have been able to win on that issue alone.

Because we're in teh same case, you really have to talk to me and we have to put together a strategy, so I don't raise some issue that you are trying not to have raised. Let's have lunch and figure out a, b & c, etc.

How's that? I come up against this stuff every day because I practice tenant's rights and am before the same judges all the time and know how they're going to rule on small issues. Sometimes very experienced attorneys screw it up because they assume they know the law better than I do, when really I already know what the judge is going to say.

You have to talk to her about it. Put yourself in her position -- if you were doing something to screw up the case, which inevitably screws both clients, wouldn't you want someone to tell you? Even if you feel like a complete idiot or it blows your confidence, ultimately what it comes down to is what happens to your client in the end, so if it were me, I'd suck it up, feel like an idiot, and just pray that my client at least got a benefit from my being told I'm screwing things up.

Absolutely raise it, but as "we need to be the best team we can be." I need to get the benefit of years of experience blah blh blah and I think I can contribute my knowledge of this judge and this prosecutor and some procedural stuff. Also, as a presentational thing, we need to coordinate who's going to raise which issues - who can speak to X better, who knows Y most completely, who the jurors or judge will be more inclined to listen to on an issue of doubt/impeachment/fact patterns. Use that discussion to filter out dumb questions in the nicest posible way.

If you make it a confrontation, the other lawyer will go all silverback gorilla on you, and it'll turn into a hissing contest. You gotta be sneaky.

But to add something... I don't know what kind of case this is. But it's notoriously hard to get a verdict overturned based on ineffective assistance, and if the defendants are convicted, they'll probably raise that issue on appeal. Even though they probably won't win, you'll have it out there that you were accused of ineffective assistance. Plus, if you sit back and let your co-counsel ruin the case and a conviction results you'll have to live with the fact that you probably would have won if you had stood up to her, and instead your client will be in jail because you didn't do anything to help him.

Of course you still have to work with her, so you want to be as nice as possible, but you can't let her harm your client. If talking to her doesn't work, see if there's anyway to renew your motion for severance. Someone in your office has probably had this experience before and could help you out.

As the spouse of a physician I don't think I have to remind you lawyers that one physician can be held responsible for the actions of another. You lawyers would be all over a case like this if it involved doctors. I know nothing about the law but it seems to me that you, BJ, should be held just as accountable for a bad outcome for your client due to the "mistakes" made by the other lawyer as a doctor would in a similar situation. But we all know that ain't gonna happen.

I feel for you. Its hard when another lawyer you're working with desn't "get it" and asks that question s/he shouldn't...I agree that you should approach it, but gently and with flattery and tact. I do think you should explain more of the plan to your client and why you will and won't bring up certain things... so s/he can appreciate how lucky s/he is to have you as a lawyer.

I once had co-counsel in a three defendant serial robbery case ask the investigating officer "what made you think my client is guilty?" At least I got to sit back and review my notes for half an hour while the cop gave a midtrial preview of the People's closing argument.